Page 2449 - Week 09 - Tuesday, 7 August 1990
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The alternative proposal set forth in the report of the select committee - which I incidentally note contained no representative from the Australian Labor Party - instead suggests that the problem can be dealt with by a code of conduct, or a code of ethics, to be negotiated between tenants and landlords. The essential problem with this, Mr Acting Speaker, is that which we find throughout the field of consumer protection legislation - the fallacy that a level playing field exists between the tenant and the landlord. In classic free market economics the power of the consumer is often extolled as the solution to all business problems.
That may well apply at the Fyshwick fruit markets where the traders need not be compelled by legislation as to quality or freshness of fruit. The consumers at the Fyshwick fruit markets have clear sovereignty because they are dealing on a basis of equality with a number of traders who have no particular domination over the market. The consumer is free to choose between traders and can exercise that consumer sovereignty.
That is not the case in the field of commercial tenancies. The small business owner, the owner of a retail outlet in one of the great shopping malls around Canberra, has no freedom of contract with the owner of those retail premises. By and large, the ultimate owner of the retail premises will be a major national corporation, and the tenant will deal with the managing agent. The mere suggestion that the small shop owner is in an equal bargaining position with the major commercial shopping centre proprietor or its managing agents, we suggest, has only to be stated to be laughed at.
The code of ethics, which is proposed in the select committee report and which was endorsed in the remarks of the Chief Minister, is modelled on the solution that was adopted in New South Wales. Central to that solution is the backing up of the code of ethics by a fair trading Act. A problem with applying that solution to the ACT context is that, in common with a number of areas of consumer protection, we do not at present have a fair trading Act. The Chief Minister promised in his remarks that it would be made a matter of urgent priority, and I welcome that statement.
In the Opposition's view, while the code of ethics proposal is insufficient, it could provide some protection for the small retail tenant, provided that it is backed by an adequate fair trading Act with substantial penalties or enforcement provisions. While it is an inadequate response, the option which was put forward in the select committee report and endorsed by the Government can at least provide some protection, provided that urgent action is taken on the introduction of this fair trading legislation. The Opposition earnestly hopes that this is not yet another statement of pious intent by the
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